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We must be realistic about the circumstances; we must be realistic about the widespread concerns about the extent to which the police have to fill in forms. The clause contains a requirement that people receive a proper receipt for documents that have been taken from them, with a fair degree of detail about the circumstances in which it has happened. However, to suggest that, at that stage, in that document, the police should explain how their investigations are going and what they are looking at is taking it a step too far. If there is genuine concern that the police are not using the powers reasonably—I would have thought that other amendments and discussions might have covered that—what the amendment proposes will not resolve that problem because it will lead to reasons being put down which are so general as to not mean anything. If one is really concerned to do that, some other form of record is needed, but it would create a new bureaucratic process. I wonder whether that is quite what the noble Baroness intends.
Lord Mackay of Clashfern: As I understand Clause 4, it deals only with the removal of a document under Clause 1(2) and not with seizure. The only object for removing a document is so that it may be examined in another place; in other words, for some reason it is not suitable to examine it there and then and you have to take it somewhere else to have it examined. Therefore, when it says in Clause 4(3)(b),
the only relevant object of the removal is for the document to be taken to another place for examination. At the moment I do not see any further scope for more than that. It does not have to say that the document will be useful on examination, because, apart from anything else, in some circumstances it would be impossible to tell that until you have examined the document. Therefore, if the policeman making the search thinks that the document requires to be examined further in a way that he cannot do there and then, it must be taken somewhere else. It is only after that that the question of seizure arises. Of course at that stage the question of whether the document will be useful in the progress of the investigation becomes relevant, but the results of the examination will be known by that time.
Lord West of Spithead: The Government understand their obligation to preserve the balance between the rights of citizens and the investigative tools available to the police. In that context I acknowledge the concerns of the noble Baroness and the noble and learned Lord. I restate that the police will not use this power to seize any documents they want. That is not what we aim to do, and I hope that the way the provision is phrased will stop that happening, with all the
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We do not expect officers to seize all materials simply, for example, because they are in a foreign language. We expect them to use their common sense over that. I give a silly example: if it is Hello magazine written in Arabic, I would hope he would use his common sense and not take it. They need to use their common sense when doing this. However, as the noble and learned Lord says, the officer is already required to state the object of the removal. It is removed so they can check it through and then make a decision about seizure. I think that he might put on his form that he has taken it as it was written in Arabic or something that he cannot translate. That might be added to the form.
I had not thought very deeply about an audit after the event. My noble friend Lord Harris gave reasons why we have to be careful of going down that sort of route. I might want to have a think about that—not for such a provision to go in the Bill, but it might be useful and I want to think about whether it might be done practically. I am conscious that we are treading into areas where we have to be careful in that balance between the rights of citizens and the tools available, so I should like to think about it.
As I say, we do not expect officers to seize masses and masses of material unless they are absolutely sure. I feel that we have dealt appropriately with these problems in the Bill. To accept the amendment would be to negate the purpose of the power. I take the potential misuse of this power very seriously. That is why we put in all the safeguards. As I say, I should like to think about the other issue, but I do not think that it would be appropriate to put such a provision in the Bill. I hope that I have been able to satisfy the noble Baroness and that she feels able to withdraw the amendment.
Baroness Miller of Chilthorne Domer: I am very grateful to all noble Lords who have spoken in what I think has been a very useful short debate on the issue. As I said at the outset, this was intended to be a probing amendment. I am especially grateful to the noble and learned Lord, Lord Mayhew of Twysden, with all his experience, for stating better than I could why it is important that we have the debate. If the suggestion of the noble Lord, Lord Harris, about an audit could be useful—I am not saying that such provision should be made in the Bill—I am grateful that the Minister is going to think about it.
The Minister said that he did not imagine that the police would seize “masses and masses” of material. However, where they have a suspect with masses and masses of material, I imagine that they would seize nearly all of it, so I am not sure that he is right about that. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Retention of documents]:
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Baroness Hanham moved Amendment No. 8:
The noble Baroness said: Under Clause 5, retention of documents is limited to 48 hours without further authorisation. Again this is a probing amendment. I should like to refer to the Northern Ireland Act, when it was in use, and ask the noble Lord how long documents such as this were held in Northern Ireland. Was it for longer than 48 hours or was it within that 48-hour limit? I suspect that it might have been less. Would the Government expect it to take longer in England and Wales to clarify whether documents are needed? I am talking about getting them back to wherever they are going—to the police station or whatever—and for somebody making up their mind about whether the documents have relevance.
Under Clause 5 it is possible for the period of extension to increase to 96 hours, starting from when the documents were originally removed. Can we be sure whether these documents can be held after they have been translated or decrypted? Therefore, if there is an extension of time to 96 hours and the documents require decryption, when does the time begin to run? For how long can they be retained? It looks as through that extension will be from the moment they are seized, but if more time is required—I can understand that the translation of documents may take time and then a decision needs to be made—is there any question that they may go beyond the 96 hours, and beyond 96 hours from when they were originally seized?
This is quite important. Clause 6 deals with access to those documents by the people they have been seized from, so we need to know where the timescales begin. I beg to move.
Lord Harris of Haringey: The amendment as tabled could remove an important safeguard that limits to 48 hours the normal process of assessing whether a document is material and should be seized. The other issues raised by the noble Baroness, Lady Hanham, are important and need to be clarified. However, the amendment as tabled to remove the 48-hour requirement seems to me to be unhelpful and would remove a very important safeguard for people faced with this situation where material was being taken from their homes to be assessed.
Lord West of Spithead: I thank the noble Baroness for these points. A couple of them are rather important. As regards the Northern Ireland situation, the period of 48 hours was used in Northern Ireland. The provisions were used around 347 times over a period of five years and the police found that 48 hours was adequate time generally to examine a document. Therefore, we did not see any reason why we should change that.
The Bill makes provision for extending the periods of retention, only with the authorisation of a chief inspector, up to a maximum of 96 hours. Perhaps we have not made it clear enough in the Bill. As I understand it, if you find something in a document in 96 hours—the period up until which it is removed—that is important for the case, you then seize it.
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On encryption, we are not allowed to decrypt something on the basis of this clause. We would have to apply for a separate notice under Section 49 of RIPA. If it was encrypted, we would either have to say that we need not bother because of all the other stuff or, if we felt we needed to, we would have to apply for that notice. I am not sure that that is quite clear enough in the Bill; I will look at it and see that it is clarified. However, the amendment would confuse things and wreck this aspect of the Bill. I therefore ask the noble Baroness to withdraw her amendment.
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Baroness Hanham: I realise that the amendment was not entirely helpful to the Bill. On the other hand, there must be devices for getting matters discussed, and so we have had a short debate on this issue. It is important in dealing with decrypting and what can and cannot be done with document retention thereafter. I am grateful to the Minister for his reply. There is nothing more to be said about this, and I do not think that I will return to it. If I do, it will be with an amendment that is less worrying to the noble Lord, Lord Harris—although why I should bother, I am not sure. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Access to documents]:
Baroness Hanham moved Amendment No. 9:
The noble Baroness said: I have four amendments in this group—Amendments Nos. 9 to 12—and I will go through them individually. As I said on Amendment No. 8, this leads us into “Access to documents”, and my amendments probe the duty of the officer to return the documents and any copies made.
Amendment No. 9 highlights the provisions that place a duty on the police to distribute copies of the document to certain people while it is seized. Oddly, the provisions under Clause 6 that ensure access are not the same as those under Clause 8 which ensure that the document is returned to the correct person. As far as I can see, the provisions would allow the owner of the document no access if he was not in custody of it when it was seized. Is that the case? It is the kernel of this problem.
There is also no discretion under Clause 6 to deny access to somebody who had custody of the document at the time of the seizure, but who should not have had it. That could occur anywhere in a workplace, for example. Clause 8 considers the possibility that someone had inappropriate custody of the document at the time of its seizure, but Clause 6 does not. This is a case of ensuring that the clauses and provisions stack up together.
Amendment No. 10 highlights the unusual judgments that these provisions will demand from police officers. As we have discussed, a police officer is in possession of an unreadable document, because it was found during a search based on a terrorism offence. He is now meant to decide whether access to this document, which is still unreadable, will prejudice a future
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The point about these documents is that the officer still does not know what they contain. He is being asked about access, does not have the faintest idea what they say, and must decide whether the person asking about it has a right of access to it or not. As he does not know, he cannot tell.
Amendment No. 11 is a probing amendment, designed to explore what would happen if the document had been damaged or lost; this is probably more relevant if a computer had been taken apart and the document had been damaged in the process. Are the police responsible or liable for the loss or destruction of that document?
Amendment No. 12 looks at the grounds on which a document’s return could be delayed. In the Commons, the Government promised to look at the Police (Property) Act 1997 to see whether there was a mechanism for deciding the property’s owner. Can the Minister give us any information about that, and whether those inquiries took place? That is the burden of those amendments. I beg to move.
Lord West of Spithead:As the noble Baroness has spotted, this is a quite complicated matter. This might be a long answer, but I need to go into some detail on it. I had the same queries myself, and so had an explanation from the Bill team.
As the noble Baroness rightly points out, Clause 6 makes provision for certain persons to have access to a document removed for examination under Clause 1 of the Bill. While removal of documents for up to a period of 96 hours may have little or no adverse effect on some people, for others the documents may relate to important matters and they will need them back. That is why this clause provides for the right of supervised access and copies.
However, it is important that such rights are not granted where the officer in charge of the investigation has reasonable grounds for believing that they would prejudice criminal investigations or proceedings, or they were sought for a nefarious purpose—for example, to interfere with prompt and effective investigation into a terrorism-related offence or to facilitate further offending.
The first amendment in this group would remove the provision which sets out the people who are entitled to request a copy of the removed document. Clause 6(3)(a) provides that where the document was found during the search of an individual—for example, stop and search under Section 43 of the Terrorism Act 2006—then that individual alone can request access to, or a copy of, the document.
Where the document was found during the search of premises, then the occupier of the premises can request access, along with the person who had custody or control of the document at the time it was found, or someone acting on behalf of those persons. These terms cover distinct groups of people. For example, if the police search the premises of a business and remove
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The second amendment would remove the reasons for which an officer can refuse access to, or a copy of, a removed document. I consider that each of the reasons in Clause 6(4) for limiting access is required. Subsection (4)(a)(i) is to cover the original investigation—a search conducted under new Section 7A of the Prevention of Terrorism Act 2005 to see whether a person subject to a control order has absconded, for example. Subsection (4)(a)(ii) will cover the investigation of the document, so access may be refused, for example, where this would prejudice the actual process of examination, such as by slowing down the examination so as to take it outside the timescales for retention.
Subsection (4)(b) covers the investigation of an offence—for example, if it was thought access would tip off a person as to the documentation seized such that other evidence of the offence could be covered up. Subsection (4)(c) covers the prejudice of criminal proceedings, the justification of which speaks for itself, and subsection (4)(d) covers the facilitation of an offence—for example, access to a document which might consist of information about potential terrorist targets. Similar restrictions on access to, and copies of, documents seized are provided in Section 21(8) of PACE. These concern the prejudice of any investigations or criminal proceedings.
I know that is a very convoluted response but I hope that the noble Baroness follows the reasoning. The consequence of accepting the relevant amendments would be to deny an individual who has had his documents removed by the police under this power a means of reducing the impact of these provisions on his life. Therefore, I hope that, on that basis, she will feel happy to withdraw the amendment.
On Amendment No. 11, the noble Baroness asked whether the police would be liable for damage to property. I assume that they are, but I do not know. I shall check that. I am sure that they would be. They will not take away computers, cameras or the like; they will take away downloads of material only. That is all that they can ask for. Therefore, any damage would concern documents. I think that it is unlikely that they would be damaged, but I am sure that the police would be liable for any such damage. However, as I say, I shall need to check that, because I am not absolutely certain about it.
Amendment No. 12 concerns the return of removed documents where there are competing claims. A situation may arise where, for example, the person on whom the document was found may have been looking after it for someone else. Where the officer returning the document is satisfied that another person has a better claim to the document, it may be returned to them.
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Where there are competing claims for the document, it may be retained for as long as is reasonably necessary to determine to whom it should be returned. This amendment would insert a time limit of 24 hours for making the decision on how long to retain the document. We have made it clear in the clause that a document can be retained only,
to make that decision. I think that, in all likelihood, the period will be much less than 24 hours. However, in a very complex case it may take longer than this to decide to whom the document should be returned. The provision in the Bill allowing retention for this purpose for as long as is reasonably necessary again follows the model in Part 2 of the 2001 Act.
I know that is very complicated, but this is a complicated provision. However, that is what is behind it all. Noble Lords should be aware that, while a document is being retained awaiting a decision on competing claims, it cannot be examined, so that does not make any difference to the relevant period. I hope that I have answered all the questions and that the noble Baroness feels able to withdraw the amendment.
Baroness Hanham: I hope that the Minister will clarify a point that he made with regard to Amendment No. 9. He mentioned somebody being under a control order as if that were the only factor. I may have misunderstood or misheard what he said and, if that is the case, I apologise.
Lord West of Spithead: I think that the noble Baroness misheard what I said.
Baroness Hanham: I shall have to read the Minister’s speech in Hansard. I am grateful to him for trying to untangle these clauses and the question of access. I shall study his comments on Amendments Nos. 9 and 10 because the areas that they cover seem rather muddled and I want to be sure that I have correctly understood what he said. I am grateful for his response on Amendments Nos. 11 and 12. I may return to Amendments Nos. 9 and 10 at a later stage, but, for today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Return of documents]:
[Amendments Nos. 11 and 12 not moved.]
Lord West of Spithead: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 14.15.
Moved accordingly, and, on Question, Motion agreed to.
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